18 * in the HIGH COURT of DELHI at NEW DELHI % Date of Judgment

WWW.LIVELAW.IN $~18 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Judgment: 02 September, 2020 + BAIL APPLN. 602/2020 JAY HARESH SOMAIYA ..... Petitioner Through: Mr Akshay Bhandari and Mr Digvijay Singh, Advocates. versus NARCOTIC CONTROL BUREAU ..... Respondents Through: Mr Subhash Bansal, Senior Standing Counsel for NCB with Mr Shashwat Bansal, Advocate. CORAM: HON'BLE MR. JUSTICE VIBHU BAKHRU [Hearing held through video conferencing] VIBHU BAKHRU, J. (ORAL) 1. The petitioner has filed the present petition seeking bail in connection with complaint case bearing S.C. No.107/2018 filed by the Narcotics Control Bureau (hereafter ‘NCB’) against the petitioner and six other accused for commission of offence punishable under Sections 8(c), 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter ‘NDPS Act’). 2. It is alleged in the complaint that on 05.11.2017, a secret BAIL APPLN. 602/2020 Page 1 of 11 WWW.LIVELAW.IN information was received by one of the intelligence officers of NCB that two persons, Rafik and Guljar aged about twenty five years and twenty two years respectively, would arrive at Hazrat Nizamuddin Railway Station for their onward journey to Mumbai in the evening of 05.11.2017. According to the information, they would be carrying charas in their bag and their search would yield a huge quantity of charas. According to NCB, this information was telephonically communicated to the Superintendent, Delhi Zonal Unit, NCB at about 9:00 AM in the morning. The information was subsequently reduced in writing by Shri Rajeev Shehrawat, IO, NCB. The Superintendent, NCB thereafter directed Shri Anand Kumar, IO to constitute a team and take necessary action in accordance with law. 3. NCB claims that on the basis of the said instructions, a raiding team was constituted and after collecting the field testing kit, electronic kit, electronic weighing machine and other accessories, the raiding team reached Hazrat Nizamuddin Railway Station. According to NCB, raiding team became aware that Rafik and Guljar were proceeding to Mumbai by train no. 12954. The raiding team reached at platform no. 3 at about 15:45 hours and at 16:35 hours noticed three persons including two who conformed to the description of Rafik and Guljar, coming down the stairs to the platform. Another person, who was accompanying them, was carrying a trolley bag in his hand. It is stated that the raiding team of NCB also joined two other officials from the Railway Protection Force as independent witnesses. 4. The said three persons were accosted and inquiries made from BAIL APPLN. 602/2020 Page 2 of 11 WWW.LIVELAW.IN them revealed that their names were Rafik, Guljar and Ramdev. Ramdev stated that he was a travel agent and the trolley bag carried by him belonged to Rafik. He stated that he come to the platform to show Rafik and Guljar the train on which they were booked. Rafik also acknowledged that the trolley bag being carried by Ramdev belonged to him. 5. According to NCB, notices under Section 50 of the NDPS Act were served on the Rafik, Guljar and Ramdev. They were searched but nothing incriminating was found on their person. However, on searching the trolley bag, it was found that bottom of the said bag was covered with the card board. On removing the card board, it was found that brown colour packets were concealed in the bottom of the trolley bag. In all twenty seven bags were recovered from trolley bag. According to NCB, all the packets were similar. They were cut and were found to be contain a dark coloured substance in semi solid form. The small quantity of dark coloured brown substance was taken from each of the packets and tested with the help of field testing kit. It is alleged that on testing, the said substance was found to be charas. The packets were weighed and it was found that the total quantity of charas recovered was 6.2 kgs. The substances in all the twenty seven packets were similar and therefore, the same was mixed and two samples weighing 25 grams each were drawn and placed in a zip lock pouches. According to NCB, the said samples were sent for chemical analysis which also confirmed that the substances recovered was charas. 6. According to NCB, notices under Section 67 of the NDPS Act BAIL APPLN. 602/2020 Page 3 of 11 WWW.LIVELAW.IN were served on Rafik, Guljar and Ramdev and their statements were recorded. Statements of Rafik and Guljar were recorded on 06.11.2017. Rafik, in his statement (which the NCB claims, he tendered voluntarily), stated that he was a resident of village Hurla, Tehsil Bhuntar, District Kullu, Himachal Pradesh. He stated that he never studied in school. Initially, he used to look after the cattle (buffaloes) at home. Thereafter, for about 5 to 6 years, he was engaged in the work of transporting sand and grit on mules. And, since the past six months, he was driving a tourist taxi. He stated that near about 4/5 months ago he met a tourist named Jay Somaiya (petitioner herein). He stated that subsequently on two or three occasions Jay Somaiya had used his taxi. He claimed that the petitioner had taken his telephone number and used to call him whenever he used to visit Bhuntar and he would drive him to his destination. He claimed that the petitioner had asked him to work for him and on one occasion petitioner gave him ₹12,000/- and asked him to carry a packet of charas to Delhi. He stated that thereafter on another occasion around Diwali he had carried his luggage to Mumbai and handed over the same to one person named Abdul and he paid him a sum of ₹40,000/- in cash. He stated that on 03.11.2017, the petitioner had called him to Kasol Village and handed over a packet for being transported to Mumbai. He was instructed to hand over the same to a person named Raunak and was assured that he would be paid a sum of ₹80,000/-. Rafik stated that on this occasion he asked his cousin Guljar to accompany him and promised him to pay ₹40,000/-. He stated that BAIL APPLN. 602/2020 Page 4 of 11 WWW.LIVELAW.IN both of them reached Delhi in the morning on 05.11.2017 and checked into a hotel near Hazarat Nizamuddin Railway Station. He claims that he gave three packets in Delhi to a man named Gaurav and got ₹15,000/- from him. Thereafter, from the said money, he purchased train tickets to Mumbai from a travel agent named Ramdev. However, they were stopped by the NCB team on the platform before they could board the train. 7. Rafik further stated that the petitioner is a resident of Mumbai and is currently staying in Choj Village, Kullu District, Himachal Pradesh and the charas recovered from his possession was handed over to him by the petitioner for being delivered to a person named Raunak in Mumbai. However, he did not know Raunak’s telephone number. Rafik alleged that the petitioner carries on the business of dealing in charas and he used to purchase the said contraband from Ramesh, Neelchand @ Neelu and Purshottam @ Kalu. 8. On the basis of the recovery and the voluntary statement made by Rafik, he was arrested at 1700 hours on 06.11.2017. Guljar was shown to be arrested an hour earlier. 9. The officials of NCB reached the residence of Bebo Ram, Choj, Manikaran, Kullu at about 05:45 a.m. on 06.11.2017. According to NCB, the petitioner opened the door and on enquiring identified himself. His room was searched and his wife and his son were also present in the room. Thereafter, a notice under Section 67 of the NDPS Act was served on him and according to NCB, his voluntary statement was recorded on that date. 10. He disclosed that he had come to Himachal Pradesh for the first BAIL APPLN. 602/2020 Page 5 of 11 WWW.LIVELAW.IN time in the year 2015 and had met Sh. Neel Chand of Choj Village and Purushottam @ Kalu of Malana. He stated that he was already a charas addict and knew that illicit trafficking of charas yields quick and hefty amount of money. He disclosed that he started buying charas from Neel Chand and Purushottam and selling the same to Shaunak, Vishwendra, Abbas and Samir of Mumbai. He stated that he did not know the exact address of the said persons, but they were residing in Andheri (West), Mumbai and they were his friends. He stated that on this occasion he had arrived in Kullu on 01.11.2017 and was staying in the house of Bebo Ram on rent at Choj Village of Kullu. He stated that he had bought half a kg of illicit charas from Neel Chand and Purushottam and he had sent one kg charas each from Kullu to Mumbai through Rafik and Guljar who were residents of Nagwain, District Mandi. The petitioner also disclosed that he had been using Rafik to carry the illicit consignment of one kg of charas which he had bought from Neel Chand and Purushottam @ Kalu. He stated that Rafik and Guljar worked as carriers for illicit trafficking of charas and also carry charas from Kullu to Mumbai. He stated that many people from Mumbai send orders for illicit charas from Kullu and Rafik and Guljar carry the same after purchasing it from Neel Chand and Purushottam. 11. He further stated that he used to deposit the money of illicit charas in the bank accounts of Neel Chand and his son Ramesh Kumar.

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